Jessie Duarte rubbishes Magashule’s claims of factional application of step-aside rule

The ANC has filed its answering court papers to Magashule in the Supreme Court of Appeal

18 November 2021 - 08:53 By Franny Rabkin
ANC deputy secretary-general Jessie Duarte has rejected claims by suspended SG Ace Magashule that the ANC has been factional.
ANC deputy secretary-general Jessie Duarte has rejected claims by suspended SG Ace Magashule that the ANC has been factional.
Image: Masi Losi

The ANC has in court papers rubbished claims by its suspended secretary-general Ace Magashule that President Cyril Ramaphosa’s cabinet reshuffle demonstrated the “selective and factional application” of the party’s step-aside rule.

The ANC last week filed court papers answering Magashule’s petition to the Supreme Court of Appeal to overturn the high court decision that upheld his suspension. Magashule also wanted the SCA to reverse the high court’s finding that there was nothing unconstitutional about the ANC’s step-aside rule. In terms of the rule, when an ANC member is charged with a serious criminal offence, they should step aside from their position. If they do not, they may be suspended.  

Magashule failed to persuade the high court to grant him leave to appeal and has now petitioned the appeal court, saying he wants to introduce new evidence — including the transcript of the announcement of the August cabinet reshuffle by the president and Ramaphosa’s evidence to the state capture commission.

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In his papers, he said the reshuffle demonstrated the factional application of the step-aside rule ... “as evidenced by the promotion and/or retention of ANC members who are facing serious allegations of corruption”.

These included Enoch Godongwana, appointed minister of finance, Mondli Gungubele, appointed as minister in the presidency, Zizi Kodwa, appointed as deputy minister in the presidency and Gwede Mantashe who was “retained as minister of minerals and energy”. He added: “More recent cases, including the Eastern Cape premier and Oscar Mabuyane, will be invoked to demonstrate the selective and factional invocation of the step-aside rule”.

Ramaphosa’s evidence at the state capture commission indicated that “he is guilty as a perpetrator of and/or an accomplice to corruption and he ought properly be liable to step aside from his official duties in terms of the original and Nasrec conference resolutions”.

But the ANC’s deputy secretary-general, Jessie Duarte, said in an answering affidavit that no guilty finding had been made by the state capture commission “or by any other competent authority” against the president resulting from the evidence that he gave before the commission.

It was therefore unclear how bringing up his evidence before commission chair Raymond Zondo was relevant to this case, she said. Similarly, the details of the cabinet reshuffle had “no bearing on these proceedings”.

In his appeal petition, Magashule insisted that the ANC had unlawfully narrowed down the scope of the step-aside rule. He argued in the high court — and repeated as a ground of appeal — that the resolutions taken at the ANC’s national conference were that members “alleged to be involved in corrupt activities” are supposed to step aside, and not just those who are indicted with criminal charges by the NPA.

The high court found that the guidelines adopted by the ANC after its 2017 conference did not substantively amend the resolutions of the conference, but introduced procedures for how the resolutions would work — with two distinct procedures, one for reports and allegations and another for when a person has been charged.

While Magashule has been charged with fraud, corruption and money laundering, none of those he has referred to in his court papers in connection with the cabinet reshuffle have been indicted on criminal charges.

Magashule said the high court got it wrong, but the high court rejected his arguments for why and all the other grounds Magashule brought for leave to appeal. In her answering affidavit, Duarte summarises these and said of Magashule’s case for appeal that “prospects of success are non-existent”. 

Duarte also rejected Magashule’s claims of bias against the high court. Despite the pasting he received by high court judges for his claim that their judgment was “littered with countless examples of indications or pointers of actual and/or perceived bias” and which pointed to their desire to produce a predetermined outcome, Magashule repeated it word for word in his SCA petition.

When judges Jody Kollapen, Sharise Weiner and Edwin Molahleli denied Magashule leave to appeal, they said in their judgment that this was a gravely serious accusation to make. It would mean that three judges sitting together would have collectively agreed to a predetermined outcome and agreed to distorting the facts, arguments and conclusions to reach such an outcome, they said.

Duarte referred to these findings and said: “The fact that the applicant may disagree with the factual findings of the court, even if such disagreements are copious, does not lead to an ineluctable conclusion that the court was biased.”

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